BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100020396 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests statements related to an allegation of spousal abuse be removed from his records.

2.  The applicant states his ex-wife accused him of spousal abuse on 25 August 2005.  This was false, but it was included in the information related to his separation.  He was separated from active duty on 3 November 2005, but the results of the investigation were not completed until 31 March 2006.  The investigation found the allegations to be unfounded.  His ex-wife has lost custody of their sons due to a finding of abuse and neglect.  He needs the information removed because it is negatively impacting the State of Vermont's Department of Child Services consideration in awarding him custody of his sons.

3.  The applicant provides a copy of a 14-page DA Form 3975 (Military Police Report), dated 25 August 2005 and date stamped 31 March 2006.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant served on active duty from 25 April 2002 through 3 November 2005 including a period of service in Kuwait and Iraq from 28 February 2003 through 29 May 2003.

3.  On 21 March 2005, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failure to obey a lawful regulation by accessing pornographic web sites from the battery's official government computer and failure to go to his appointed place of duty.

4.  On 25 August 2005, the applicant's wife accused him of entering their quarters through the kitchen window and threatening her and their 6-month old son with bodily harm.  She indicated the applicant stole several digital video discs, some cash, and a military identification card belonging to another Soldier.

5.  The applicant was interviewed on 29 August 2005 and invoked his right to counsel.

6.  On 3 October 2005, the unit commander notified the applicant of initiation of separation action under the provisions Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, for misconduct.  The reasons cited were:

* the NJP for accessing pornographic web sites from a government computer
* breaking into his quarters and verbally communicating a threat to his wife and child
* disobeying a noncommissioned officer by failing to perform police call on the motor pool parking lot
* leaving his post without permission from his commander or chain of command

7.  After consulting with legal counsel and being advised of the impact of the discharge action, the applicant submitted a statement on his own behalf.  He stated that the past six months have been extremely hard on him.  He had marital difficulties that interfered with his work, but because his divorce would be finalized soon, these difficulties would no longer be an issue.  He wished to put that part of his life behind him and continue his military career.  He had not been given a chance at rehabilitation and hoped to move to another brigade or battalion to try and get a clean, fresh start.  He believed that he had a lot to offer the Army and had hopes of becoming a commissioned officer in the Judge Advocate General's Corps.

8.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general under honorable conditions discharge.

9.  On 14 October 2005, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general under honorable conditions.

10.  On 3 November 2005, he was separated with a general discharge under the provisions Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct.

11.  During the abuse investigation, the investigating officer coordinated with a Staff Judge Advocate (Captain C____) who opined that there was insufficient evidence to title the applicant or support the allegations of aggravated assault, larceny of private property, larceny of government property, or spousal abuse.  On 31 March 2006, the final investigative report was reviewed and approved by the Command Provost Marshal Lieutenant Colonel J____ P____.   He determined there was insufficient evidence to title the applicant or support the allegations of aggravated assault, larceny of private property, larceny of government property, or spousal abuse.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general under honorable conditions or an honorable discharge may be granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he needs the reference to a claim of abuse removed from his records to allow for consideration of custody of his children.

2.  At the time of the applicant's separation, the alleged abuse was a factor in the command's decision to separate him.  However, 5 months after his separation the results of the investigation were finalized and the determination that the charges were unfounded was promulgated.

3.  There are only two items referencing the now unfounded abuse and assault allegations – paragraph 1(b) of the separation notification letter and the five pages from a police blotter/investigation of the allegations that contains the determination that there was insufficient evidence to even warrant titling the applicant.

4.  Therefore, since not only were the charges determined to be unfounded but were of so little validity to even title the applicant, it would be appropriate to remove the above noted items from the applicant's file.

5.  Since the applicant reports that the State of Vermont already has the documentation showing the allegation and that it is a part of its deliberations.  It is recommended that the applicant forward a copy of this decisional document to clarify the matter for Child Services.

BOARD VOTE:

__x____  __x_____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the entry at paragraph 1(b) from the notification letter and removing the five pages of police blotter and investigation record from his records.



      __________x_______________
                 CHAIRPERSON
       
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20100020396



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ABCMR Record of Proceedings (cont)                                         AR20100020396



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